There's a particularly interesting angle to the Jose Padilla lawsuit my co-blogger Jonathan Adler discusses below: Yale Law School's International Human Rights Law Clinic (representing Padilla) is bringing the suit against a Yale Law School graduate (Yoo '92), for providing bad legal advice.

Based on the complaint, I don't think Yale Law School ends up looking very good on either side of this one. Yoo's legal analysis was very weak, for reasons we have explored at length here. But I don't think the Yale Law clinic has a strong legal footing, either. First, there's an interesting question whether Yoo would be entitled to absolute immunity or only qualified immunity for the legal opinions he drafted at OLC. My quick look at the cases suggests there's no clear answer to that.

Second, while I am no expert in civil tort actions, I would think there is a significant problem with causation. As I understand it, the claim against Yoo is that he adopted legal positions in memos that permitted others to perform acts that violated Padilla's rights. I would think that is too far removed to satisfy the causation requirement for a civil tort action.

UPDATE: Duncan Hollis has some interesting throughts on the case at Opinio Juris.

In Mitchell v. Forsyth, 472 US 511 (1985), the Court rejected AG Mitchell's claim to absolute immunity for having auhtorized a warantless wiretap. In Burns v. Reed, 500 US 478 (1991), the Court held that a prosecutor's advice to police was entitled to qualified immunity only.

True, although as I read the the cases they focus on the nature of that particular person's specific role and the consequences of allowing or denying qualified immunity. In Burns, for example, the key was that the prosecutor's advice in that case was investigatory rather than prosecutorial in nature. OLC serves a quasi-judicial function within the executive branch, which I think makes the correct standard unclear for advice in OLC opinions. You may be right, of course; I'm just not sure given the flexible and fact-sensitive approach the Court has taken.

Agreed that causation is an issue, tho where did that leave the lawyers who okayed the Nacht-und-Nebel decrees?

The focus on Yoo seems to me to make most sense as an effort to avoid being bounced out on a 12(b)(6) due to the very murkiness that Prof. Kerr identifies (see what happened to Valerie Plame's suit). If they can get to discovery, they may be able to get Yoo under oath as to whether he was, in so many words, directed to find a legal rationale for torture.

If OVP, say, directed him thus, then that might get a suit against Cheney or whoever past the 12(b)(6) mark -- assuming that even elected officials don't have absolute immunity for conspiracy to violate the laws of the United States.

If Padilla is only seeking nominal damages and a declaratory judgment that Yoo's advice was contrary to law when such a judgment will have no practical legal effect whatsoever, how can this lawsuit be anything other than a request for the district court to issue an advisory opinion? How then, does this case satisfy the Case or Controversy requirement of the Constitution?

Professor Kerr, while I agree that there are serious causation problems with the claim, I respectfully submit that you are begging the question when you dismiss the claim as being one for "bad lawyering."

If Yoo simply made honest mistakes, that would be bad lawyering.

If, on the other hand, Yoo deliberately wrote a memo for the purpose of justifying an illegal course of conduct, so as to enable such conduct to happen -- in the sense of "we can't do this unless we get an opinion approving it; write something saying that torture is legal" -- then that is not bad lawyering, that is aiding and abetting.

Based on what I have read and heard of Yoo and his work, the second explanation is at least plausible.

[UPDATE: I'm informed by one of our regular readers of an additional possibility for the Padilla suit seeking only declaratory relief. Apparently, there's some Supreme Court precedent that requires a court to decide whether the Constitution was violated before deciding whether the defendant is entitled to immunity. Thus, if the constitutional principle being asserted by Padilla was not clearly established at the time Yoo acted, Yoo will ultimately be immune from damage relief. But before dismissing the complaint, the court is supposed to decide whether he violated the Constitution and thus, as a practical matter, there may be no immunity from declaratory relief. The issue, however, is a bit outside my expertise, so I'd be interested to know whether other readers agree?]

Causation is not a problem. Is anyone seriously arguing that torture was not 100% foreseeable to Yoo? Was waterboarding not the "natural and foreseeable" result, if not the specifically intended result?

Actually, the government was probably torturing already, and the OLC Memo was just the Executive requesting a legal opinion that okayed practices that were already common.

You'd think the First Amdenment might be implicated to protect Yoo's legal opinion. At least I hope it would. Maybe Yoo should have written instead that Padilla had his first sexual experience with his co-plaintiff mother in an outhouse? Now that's something worth protecting!

What duty does a lawyer owe a non-client for negligence or malpractice? The only people with standing to sue Yoo on that score would be the public officials who perhaps relied on that opinion.

This just shows that Yale law school is for losers. Have we really reached a point here where the top law school is going to sue a lawyer for an memo he authored which supposedly led to a possible enemy of the US during wartime being "held in a 7 x 4 cell" and not given access to the full prison library?

I know yale isn't known for making lawyers but legal philosophers, but you'd think they'd at least pretend to be lawyers.

I would think that Yoo would be entitled to a defense by the Justice Department, or that he would be indemnified for attorneys' fees. It doesn't matter, though. A child could write a successful motion to dismiss this case, regardless of what some commenters on this blog seem to think.

Once we get past Yoo, odious creature that he is, the rubber really hits the road. Lawyers have taken up the practice of issuing tax opinions that are strained at best and mostly flat wrong. Financial firms sell these opinions to wallpaper tax shelters and reward the law firms handsomely. Often the financial firm and the lawyers collude on the letters. Taxpayers use these opinions to not pay taxes due and then claim that because they were following legal advice they are not subject to penalties.

This is but one example of a practice that needs to be penalized. There has to be a cost to a lawyer for issuing such and opinion otherwise the law becomes a joke. Hmm maybe wrong tense.

Padilla was questioned by the FBI in NY and then by the military in Charleston, and he made extensive un-Mirandized statements showing he committed Treason and was a spy. The constitution requires a confession to Treason be in open court, and a Court Martial on the same charges as ex parte Quirin would run into the same Fifth Amendment problems. However, if Padilla sues and claims he was not an enemy combatant and was abused during the period in which he was questioned, then he would have to take the stand as the only witness that supports these factual claims. He is then subject to a cross-examination, and his prior statements can be admitted for the purpose of impeaching his testimony. Although his original statements may be inadmissible, anything he says on the stand during cross could be used against him and, as statements in open court, could satisfy the constitutional requirement for a Treason conviction. If there is one thing clear in this case it is that Padilla is not very smart and does not know when to keep his mouth shut. No competent lawyer will expose him to such a cross-examination.

Padilla has been the subject of continuous litigation, but up to this point his lawyers have attempted to use forms (summary judgement, an affidavit) that prevent his testimony. It is not clear that even the trick of asking for only nominal damages is enough to keep him off the stand in this case. Winning a dollar in compensation is not worth taking a chance on providing the evidence that will get your client hung.

In his book "The Terror Presidency," Jack Goldsmith describes how frivolous lawsuits like this are used by the enemy as a means of asymmetrical warfare against the United States. It is pure madness to allow a traitor and member of al Qeada to abuse the legal system to harass members of the Government.

It occurs to me that Padilla might want his case to be heard in the International Court of Justice. Although a US citizen, the Bush administration declared him to be an "illegal enemy combatant." The Bush administration cannot have their cake and eat it, too. But before a case can be brought in the ICJ, the plaintiff has an obligation to exhaust local remedies. So these two lawsuits might have been brought pro forma, to start the exhaustion process and get to the ICJ all the quicker.

This is political. The necessities of defensive practice of law in civil tort actions lead to private practitioners suing everyone in sight, particularly in medical malpractice and construction defect cases.

I seem to be missing something. Apparently, Padilla made a number of un-Mirandaized statements that would show him to have been treasonous and a spy. But the assertion was that this would not be admissible in a civil trial. But this does not make much sense. He is the plaintiff here in a civil suit. Miranda, et seq. was/were aimed at criminal trials. Why should protections for criminal defendants be extended to civil plaintiffs? My view (not being anywhere near an expert here) is that those statements should be no different than any other unsworn statements as to their admissibility, and, in particular, as prior inconsistent statements to rebut his other testimony.

The alternative would be to put the civil defendant here in the position that he could prove his defense if but he could use that testimony. Now, if Yoo had ordered that Padilla be interrogated w/o Mirandaizing him, that would be one thing. But absent that, it would seem to be highly prejudicial to Yoo if he can't use this testimony of the plaintiff suing him.

I admit I was not clear. Padilla's statements would not be admissible in a criminal case against him, but are admissible in this civil case. However, if they were used during cross to elicit additional statements, then those additional statements could be used in a subsequent criminal charge of Treason. Given Padilla's previous willingness to talk to everyone and tell everything, it seems likely that any competent lawyer should be able to elicit enough testimony to make the case.

Mr Hayden does add an important point I missed. Padilla has thousands of hours of recorded video of statements made during interrogation where he outlined his participation in a plan to kill thousands of Americans. He was, by his own admission, the key player in the next attack (the "apartments operation") on the US by the group that carried out the 9/11 attack (the "planes operation"), and his arrest stopped the follow-on attack. The government never had an opportunity to introduce his tapes, because they were never relevant to any litigation. This case could open the door, and Yoo could subpoena the tapes and introduce them. Those tapes would dominate the news, while Padilla's allegations would remain unsubstantiated.

Normally a lawyer has to do everything in the best interest of his client in the present case, but here there is very little downside for Yoo, especially if the government is picking up the tab. There is an enormous downside for Padilla. So if I were a government lawyer assigned to this case I might (with the permission of Yoo) bypass a few of the preliminary motions that would get the case thrown out immediately and move as quickly as possible to any type of hearing where Padilla has to take the stand.

The two cases (this civil case and Padilla's subsequent Treason trial) address different questions. It is certainly possible that Padilla was a traitor but that there was some consititutional defect in his subsequent treatment. So he could win his dollar from Yoo, and legal fees from the government, and then get convicted of Treason and sentenced to die. I am willing to take up a collection to pay the buck.

Yes, we should certainly imprison or kill anyone who questions our government, just as the founders intended. /sarcasm

Please show me where "the founders intended" for an international court to sit in judgment of an American government official because a convicted terrorist disagrees with that official's legal opinion.

Incorrect statements abound (on both sides) but what the heck, who been stopped by that before?

Article III, Section 3 of the Constitution provides, "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

While I am unaware of how broadly or narrowly the Supreme Court has ever defined the phrase "overt act," it would seem that the purpose of the amendment is to allow a conviction for treason based on the word of just one witness.

Jose Padilla will be sentenced to life imprisonment some time soon and spend the rest of his sorry life at the federal prison in Florence, Colorado (the infamous "super max"). Since that is such a fun place to live and breathe, why should the government ever give him a forum by charging him with anything else?

As for the idiotic comment about this being a way to get this case before the International Court of Justice, the statement is silly. First, the International Court of Justice is designed to resolve disputes between nations, not morons and the governments incarcerating them.

I suspect what is meant is the International Criminal Court,
The United States has never agreed to the jurisdiction of that court vis-a-vis American citizens (indeed, the United States has not ratified the treaty creating the court), and despite those on this forum who suffer from BDS, John Yoo won't be the first.

Please show me where "the founders intended" for an international court to sit in judgment of an American government official because a convicted terrorist disagrees with that official's legal opinion.

I think the majority of people here would be quite happy to have an Art III court sit in judgment of the American gov't official. At least I would.

I don't care about international courts and I can't possibly imagine why would you mention them in this context except as a red herring. The matter under discussion is Padilla v. Yoo and I'm not going to be baited into discussing anything else.

I don't care about international courts and I can't possibly imagine why would you mention them in this context except as a red herring.

Umm ... how about reading the thread before you comment on it? I didn't bring this up. I was responding to the following comment:

"It occurs to me that Padilla might want his case to be heard in the International Court of Justice ... But before a case can be brought in the ICJ, the plaintiff has an obligation to exhaust local remedies. So these two lawsuits might have been brought pro forma, to start the exhaustion process and get to the ICJ all the quicker.
1.5.2008 11:34am"

I think this theory is ridiculous and I responded accordingly. If you didn't want to discuss "anything else," why pick my comment about "international courts" to respond to? Why not just say what you wanted to say about Article III courts?

No, "Oren," if "the current case is pro forma to exhaust local remedies" so that Padilla can bring an action in an international court, my response is relevant. It is clear from your first comment that you just didn't bother to read the entire string before you posted. Backtrack all you want, but I didn't bring up international courts and if they are a red herring, they are Tony Tutins' red herring, not mine.

Harry Morant: "There is an epitaph I'd like: Matthew 10:36,... And a man's foes shall be they of his own household." You have to enjoy the irony. Nothing like our "elite" tearing at one another. Next time, John Yoo will remember to drink the Yale Koo-aid.